Kolesky and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 3191

Kolesky and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3191 (28 August 2020)
Division:GENERAL DIVISION
File Number:2019/7177
Re:Christopher Kolesky
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:28 August 2020
Place:Brisbane

The Tribunal affirms the decision under review.
..................[SGD]...............................................
Member D Mitchell
CATCHWORDS
CITIZENSHIP – citizenship by conferral – person aged under 18 years old – significant hardship or disadvantage – best interest of the child – discretion to approve or refuse to approve citizenship application – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Chirenda and Minister for Immigration and Border Protection [2015] AATA 64
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
G v Minister for Immigration and Border Protection [2018] FCA 1229
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Martindale and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2554
Minister for Home Affairs v G [2019] FCAFC 79
Park and Minister for Immigration and Citizenship [2010] AATA 886
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498
RVXY and Minister for Immigration and Border Protection [2015] AATA 857
Shams v Minister for Immigration and Citizenship [2011] FCA 1505
Singh v Minister for Immigration and Citizenship [2011] FCA 685
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy
Department of Immigration and Border Protection, Citizenship Procedural Instructions
REASONS FOR DECISION
Member D Mitchell
28 August 2020
INTRODUCTION

Mr Christopher Kolesky (the Applicant) was born in South Africa in September 2002.[1] He arrived in Australia on 30 June 2018. As a holder of a subclass 101 (Permanent Child) visa he became a permanent resident.[2]
[1] Exhibit 1, T Documents, T4, page 116, Applicant’s Birth Certificate.
[2] Exhibit 1, T Documents, T10, pages 126-127, Applicant’s Visa Details.
On 9 May 2019 the Applicant, aged 16, applied for Australian citizenship by conferral pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).[3]
[3] Exhibit 1, T Documents, T4, pages 92-112, Form 1290: Application for Australian Citizenship by Conferral – Other situations.
While the Applicant met the requirements of section 21(5) of the Citizenship Act, on 24 October 2019 the delegate of the Respondent exercised the discretion under section 24(2) of the Citizenship Act to refuse the application as they were not satisfied that the Applicant met the residence requirements.[4]
[4] Exhibit 1, T Documents, T2, pages 7-13, Notification of refusal of an application for Australian citizenship by conferral and assessment of application attaching the Decision Record and Review Rights.
ISSUES
The issue before the Tribunal is whether the discretion under section 24(2) of the Citizenship Act should be exercised to refuse to approve the Applicant becoming an Australian citizen despite him having met the requirements under section 21(5) of the Citizenship Act.
THE LAW
Section 21 of the Citizenship Act sets out that a person may make an application to the Minister to become an Australian citizen and provides the eligibility requirements. Relevantly for persons aged under 18 at the time their application is made, section 21(5) provides:
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
Section 24 of the Citizenship Act provides that the Minister must approve or refuse to approve a person’s application to become an Australia citizen and sets out the circumstances where the Minister may or must not approve such an application. Relevantly:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
……
The discretion in section 24(2) of the Citizenship Act is unfettered, there are no legislative guidelines as to how and when it should be exercised. Consequently, the Department has put in place policies, procedures and instructions to assist decision makers by providing guidance on the interpretation of, and the exercise of powers under the Citizenship Act and the Australian Citizenship Regulations 2007.
The Tribunal was directed to relevant Chapters of the Citizenship Policy and the Revised Citizenship Procedural Instructions (CPIs). The Tribunal notes that the at the Hearing the Respondent referred the Tribunal to a recently updated version of CPI 4 that relates to Australian citizenship by conferral by persons under 18 and submitted that it is this version of CPI 4 that should be considered by the Tribunal in this matter.[5] The Tribunal notes that CPI 4 was reissued on 17 May 2020 with the most significant change to the previous reiteration being to the guidance provided in relation to considering the amount of time the person has spent in Australia. The revised CPI 4 has moved away from the requirement to meet the general residency requirements to a sufficient period usually being two years residence in Australia immediately prior to the application. While this is a beneficial change, it has no overall impact on the current matter as the Applicant was not present in Australia for two years prior to making his application for Australian citizenship.
[5] Exhibit 7, Citizenship, Procedural Instructions (CPI) 4: Citizenship by conferral – Person under 18.
Rather than reproduce whole chapters of these policy documents, relevant exerts include:
Citizenship Policy
Chapter 7 – Citizenship by conferral[6]
[6]     Exhibit 1, T Documents, T3, pages 42-77, Citizenship Policy Chapter 7: Citizenship by conferral.
The discretion in s24(2) to refuse to approve an applicant from becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out in the chapter.[7]
[7]     Exhibit 1, T Documents, T3, page 49, Citizenship Policy Chapter 7: Citizenship by conferral.
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement).[8]
[8]     Exhibit 1, T Documents, T3, page 50, Citizenship Policy Chapter 7: Citizenship by conferral.
Chapter 3 – Definitions used for citizenship[9]
[9]     Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, Annexure A, pages 2-3, Citizenship Policy, Chapter 3 – Definitions used for citizenship (extract).
Significant hardship or disadvantage/detriment
…….
In making assessment of whether a person would suffer significant hardship or detriment/disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
·     Significant – important; of consequence
·     Hardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
·     Disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition
·     Detriment – loss, damage or injury
·     Economic – relating to the production, distribution, and use of income and wealth
Personal needs and personal wants
There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit subtends who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders.
……
For conferral
People would normally be required to demonstrate some or all of the following circumstances:
·     inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
·     difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
·     academic (for example, research, academic scholarship) or other (sporting, etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Chapter 22 – Best interests of the child[10]
[10]    Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, Annexure A, page 5, Citizenship Policy, Chapter 22 – Best interests of the child.
The meaning of the best interests of the child is not defined but is informed, in part by the principles in the Convention on the Rights of the Child (CROC). The factors that are most likely to be relevant to citizenship decisions are:
·     children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse
·     families should be able to stay together, as far as possible
·     the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child
·     the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law
·     prevention of the illicit transfer and non-return of children abroad
·     freedom of religion
·     the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding and
·     the degree of the child’s integration into the Australian community.
Those factors raised by the applicant or a third party, or evident on the available material, must be considered. Decision makers are not required to request further material for consideration regarding the rights of a child.
……
Citizenship Procedural Instructions
CPI 4 – Australian Citizenship by Conferral – Persons under 18[11]
[11]    Exhibit 7, Citizenship, Procedural Instructions (CPI) 4: Citizenship by conferral – Person under 18.
9. Applicants aged 16 or 17 years at time of application
In addition to the legal requirements set out in subsection 21(5), decision-makers are to give due consideration to the policy guidelines below in deciding whether to approve or refuse the application of applicants who are aged 16 or 17 years at the time of application.
Officers are to consider this policy for the purpose of guiding the exercise of the discretion in subsection 24(2) of the Act to refuse to approve a person as an Australian citizen even if they meet the eligibility criteria in subsection 21(5)…….
9.1. Residence in Australia
Under policy, a relevant consideration when determining whether to exercise the discretion at subsection 24(2) of the Act is to take into account the amount of time that applicants aged 16 or 17 years have spent in Australia prior to lodging an application for citizenship by conferral.
A sufficient period is usually two years residence in Australia immediately prior to the application. This would usually mean that the applicant would have attended at least 12 months schooling in Australia and a decision maker may on that basis be satisfied that the person:
·Understands the nature of the application;
·Possesses a basic knowledge of English; and
·Has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
………
9.3 Where above policy guidelines are not met
Decision makers must consider whether the client would be subject to significant hardship or disadvantage before proceeding to refuse an application. For further information, refer to Citizenship instruction 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship. Decision-makers are reminded that claims the applicant cannot access the Commonwealth’s Higher Education Contribution Scheme (HECS) or Higher Education Loan Program (HELP) because they are not an Australian citizen is not, by itself, significant hardship or disadvantage.
The decision maker may consider to refuse the application by an applicant aged 16 or 17 years under subsection 24(2) of the Act as it allows an application to be refused even though a person meets the eligibility criteria in subsection 21(5) of the Act. Each case must be assessed on its merits. …
Where an application is being considered for refusal using the discretion set out in subsection 24(2) of the Act, a best interest of the child assessment will be required if the applicant is under 18 at time of decision. Refer to Citizenship instruction 13 – Best Interest of the Child Assessments.
Officers are to consider this policy for the purpose of guiding the exercise of the discretion in subsection 24(2) of the Act to refuse an application even if the person meets the eligibility criteria in subsection 21(5). … As noted above, the policy guidelines should not be applied inflexibly, particularly in circumstances where the applicant may suffer significant hardship or disadvantage…...
While the Tribunal is not bound by policy, to aid consistency, they will usually be taken into account and followed unless there are cogent reasons not to.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
It is noted that with respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J stated at page 645:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
It is noted that the lawfulness of the predecessors to the CPI’s were examined in the decision of G v Minister for Immigration and Border Protection [2018] FCA 1229 and further on appeal by the Full Federal Court in the decision of Minister for Home Affairs v G [2019] FCAFC 79 (MHA v G). The Full Federal Court considered whether the following bolded words should be considered to be an unlawful fettering of the Respondent’s discretion under section 24 of the Citizenship Act in relation to particular child applications under 16:[13]
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of the application and decision and also meet the following policy guidelines:
…..
·Are under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage – see section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) or
…..
[13] Minister for Home Affairs v G [2019] FCAFC 79 at [44].
The Full Federal Court held on appeal that the primary judge erred in concluding that the bolded words above were inconsistent with the Citizenship Act. As such in making an independent assessment of the material before it while not bound to follow the Ministers policy or CPI’s the Tribunal must take them into account and give them the appropriate weight.[14]
[14] Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20.
EVIDENCE
At Hearing the Applicant was represented by his father Mr Johannes Kolesky and supported by his mother Dr Ananta Kolesky. The Applicant, Mr Kolesky and Dr Kolesky all gave evidence under affirmation.
The evidence provided was consistent with that provided in their written statements.[15]
[15] Exhibit 2, Applicant’s submission dated 28 January 2020; Exhibit 4, Statement of Dr Ananta Kolesky dated 22 July 2020; and Exhibit 5, Statement of the Applicant updated, submitted on 20 July 2020.
At Hearing the Applicant told the Tribunal that he attended an Australian Defence Force (ADF) session in Rockhampton in 2019 and was advised to make an application for Australian citizenship as soon as possible as he would need to be an Australian citizen to enlist in the ADF. The Applicant said that he attended a youth session which included an aptitude test and an interview. He believes he went well and was provided with a report outlining the jobs he would be eligible for upon enlistment. The Applicant said that he received emails confirming his progression to this point in the process and that he had initiated the required police checks from South Africa, provided the requested character references and would need to complete a medical, physical and psychological test before being accepted. The Applicant said that he could not progress to these final stages of the enlistment process without being an Australian citizen.

The Tribunal asked the Applicant whether he could provide copies of the email, letter and job report he was referring to. The Applicant provided these documents to the Tribunal by email. The documents confirm the Applicant’s evidence and set out that he had completed the initial steps in the ADF recruitment process. The Tribunal notes that these documents are not providing a guarantee of enlistment. The Respondent was given the opportunity to provide submission in response to these documents however chose not to.
The Applicant showed an admirable enthusiasm not only for the opportunities and structure that a career with the ADF would provide him but also with the opportunity for him to give back to Australia. He told the Tribunal that he understands and would obey the laws and way of life in Australia and wants to be able to contribute to Australia.
The Applicant currently has a part time job and said he works between 9 and 12 hours a week.
The Applicant was asked a number of questions in relation to what he would do if he was not able to join the ADF. He told the Tribunal that he would like to study at university however would not be able to afford to without access to HECS, which is only provided to Australian citizens, he has applied for over 50 apprenticeships however where he lives the unemployment rate is high and there is huge competition for all jobs.
The Applicant was asked whether he had investigated scholarship options, he said he had not as he did not think his grades were good enough. He was also asked if he knew that the ADF allows non-citizens to enlist in exceptional circumstances. He said that he did however he was told that option is unlikely and he should pursue gaining citizenship. The Applicant noted his email to the Tribunal after the Hearing, that although he had been told that permanent residents could enlist in the ADF under extreme situations, jobs would be given to citizens first and as such it was very unlikely that his application would progress on that basis.
The Applicant told the Tribunal that it is more difficult to travel on a South African passport.
The Tribunal is satisfied that the Applicant has given a lot of thought as to what he would do if he is unable to enlist in the ADF when he finishes high school at the end of the year. He clearly has options available to him, however his evidence was that the current options would mean that he would potentially be doing part time jobs or a job that was not where his passion lies or where he sees his future being, in effect he would be pausing his life for a further 2 years until he could become an Australian citizen.
The Applicant presented as a well spoken young man who simply wants to join the ADF and wants to be an Australian citizen as he feels that being a permanent resident is like being a guest and he does not want to feel like a guest as he sees Australia as his home.
Dr Kolesky told the Tribunal that the Applicant has fitted in well to both family life and life in Australia, she said that she had not seen the Applicant as invested and excited about something until he decided that he wanted to join the ADF. She said that he has started to work on his fitness in preparation.
Dr Kolesky became emotional when telling the Tribunal what becoming an Australian citizen meant to her and why it was important to the Applicant, she said permanent residency is not the same. She said that to be a citizen is to belong, to have your new home adopt you as you have adopted it, it means you are an Aussie.
Consistently with the written submissions, Dr Kolesky told the Tribunal that she had applied for many Australian visa’s and was impressed by the guidance and tick boxes normally provided and in applying for the Applicant’s citizenship they were not aware of any requirements outside of those set out in section 21(5) of the Citizenship Act. She said they had not lodged early to avoid or circumvent anything; they just were not aware that further requirements existed.
Dr Kolesky said that the Applicant has been looking at employment options outside the ADF however that is not where his passions lie. She told the Tribunal that while they would continue to support he Applicant, that would not be indefinite, he is about to turn 18 and it is important for young people to stand on their own two feet. Dr Kolesky was open about their family’s financial situation and the Tribunal accepts that they are not currently in a situation to provide the support necessary to pay for the Applicant to attend university if he were to attend without HECS assistance.
Mr Kolesky told the Tribunal he agreed with what Dr Kolesky had told the Tribunal. He said they would try and support the Applicant the best they can.
Mr Kolesky told the Tribunal that unemployment is high where they live and gave examples of apprenticeship positions that are receiving between 1000 and 2000 applications.
Applicant’s Contentions
The Applicant’s contented that if his application for Australian citizenship is not granted his life and career will be put on hold. He will be lagging behind and would have to find temporary work but would not be contributing in a meaningful way. The Applicant contended that he was unaware of any eligibility requirements outside section 21(5) of the Citizenship Act when he applied and as he will be turning 18 years old shortly and as such if he is required to reapply may then have to meet different requirements again.
The Applicant contended that he should his application for Australian citizenship should be granted.
Respondent’s Contentions
The Respondent contended that not only is policy a relevant consideration for the Tribunal but that it will need to be satisfied of cogent reasons before it decides not to apply the policy.[16]
[16] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 6-7, paragraphs 31-35.
The Respondent contended that the Applicant does not meet residence requirements under the Citizenship Act or relevant policies as he was not present in Australia from 8 May 2015 or 8 May 2017 (being the day 2 years immediately before his application for citizenship on 9 May 2019) and was not a permanent resident throughout the 12 months immediately before his application.[17]
[17] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraph 39, made reference to 4 years immediately before the Applicant’s application for citizenship, however at Hearing the policy change as provided for in Exhibit 7, Citizenship, Procedural Instructions (CPI) 4: Citizenship by conferral – Person under 18 was noted.
The Respondent contends that the Applicant’s desire to join the ADF and an interest in obtaining HECS-HELP financial assistance to undertake tertiary study amount to personal wants and not personal needs and do not give rise to a significant hardship or disadvantage.[18]
[18] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraphs 40-41.
The Respondent[19] drew the Tribunal’s attention to the decision of Chirenda and Minister for Immigration and Border Protection [2015] AATA 64 where Senior Member Walsh remarked at [35] and [38]:
While the period of delay before being eligible to become an Australian citizen and join the RAN may seem unacceptable to 18 year old Mr Chirenda, absent any demonstrated significant financial impact, the sense of frustration that Mr Chirenda may feel at being temporarily prevented from pursuing a particular career path does not amount to “significant hardship or disadvantage” within the meaning and for the purposes of [the relevant policy].
…..
The fact that it would be financially advantageous if [the Applicant] could acquire Australian citizenship, including because he would not have to pay the higher university fees applicable to overseas (non-citizen) students, is not unusual or exceptional amongst applicants for Australian citizenship and is not, by itself, a reason to confer citizenship: see Park and Minister for Immigration and Citizenship [2010] AATA 886 at [29].
[19] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 8-9, paragraphs 43 and 46.
The Respondent contended that the Applicant’s acceptance into the ADF is speculative and that as such it is not only his citizenship status that may be a barrier to him being able to enlist. The Respondent submitted that not being able to join the ADF is not a relevant hardship as the Applicant can pursue study and alternative employment and has support from his parents. Further the Respondent contended that in this instance refusal to grant the Applicant citizenship at this time will not prevent him from joining the ADF in the future.[20]
[20] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 8-9, paragraphs 42, 44-45 and 47.
The Respondent submitted that a person is expected to be present in Australia for a reasonable amount of time before becoming an Australian citizen and that the Applicant had only been in Australia for approximately 10 months at the time he made his application for citizenship, which is not long enough. The Respondent contended that there was no hardship or disadvantage caused by the Applicant being required to wait to become an Australian citizen and that policy is considered to ensure an consistent and fair application of the Citizenship Act. The Respondent submitted that becoming an Australian citizen is a privilege not a right.
The Respondent contended that the factors that are relevant to a consideration of the best interests of the child, pursuant to the Convention on the Rights of the Child are not relevant in the Applicant’s case.[21]
[21] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 9, paragraphs 50-51.
CONSIDERATION
In considering this matter, the Tribunal had initial concerns in relation to circumstances where specific requirements are in place to qualify for Australian citizenship for persons under the age of 18 which do not require general residency or length of residency requirements to be met, and those requirements subsequently being imposed by way of the Citizenship Policy and CPI’s and whether such action was inconsistent with the Citizenship Act.
This very concern was considered by Deputy President Hack SC in RVXY and Minister for Immigration and Border Protection [2015] AATA 857 who noted that this argument had been put forward, and rejected, in two decision of the Federal Court of which are binding unless they can be distinguished. The decisions in Singh v Minister for Immigration and Citizenship [2011] FCA 685 (Singh) and Shams v Minister for Immigration and Citizenship [2011] FCA 1505 (Shams) both concluded that the Citizenship Instructions were not ultra vires. As such the Minister, and thus the Tribunal was entitled to consider a matter that was not a condition of eligibility but which was referred to in the Citizenship Instructions as a factor to be taken into account when exercising the discretion provided by section 24(2) to decide whether or not to approve an application for citizenship.
The decision of the Full Federal Court in MHA v G as set out in paragraphs 12 and 13 above is consistent with the decisions in Singh and Shams. Consequently, despite the Tribunal’s initial concerns it is bound by authority to conclude that the Citizenship Policy and CPI’s are not inconsistent with the Citizenship Act in this respect.
It is not in contention that the Applicant met the requirements of section 21(5) of the Citizenship Act at the time of making his application for Australian citizenship, nor is there any contention in relation to the length of time the Applicant had spent in Australia prior to making said application. What is in contention is whether or not the discretion in section 24(2) of the Citizenship Act should be exercised to refuse the application.
As the residency requirements set out in the Policy and CPI’s, of having been present in Australia for two years prior to application, are not satisfied the Tribunal must consider whether the Applicant would be subject to significant hardship or disadvantage if his application for Australian citizenship was refused. As noted in the decision of Martindale and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2554 at [29-30]:
29.      In other cases the Tribunal has found there was no “significant hardship or disadvantage” where:
(a) alternative employment was available;[22]
(b) an applicant’s desires were personal wants and work aspirations, rather than a personal need;[23]
(c)   there was no financial hardship;[24] and
(d) it would simply be financially advantageous to acquire citizenship;[25]
30.      Consistency with comparable cases and decisions is “[o]ne of the factors to be considered [by the Tribunal] in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy”.[26]
[22]    Chirenda v Minister for Immigration and Border Protection [2015] AATA 64; Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498.
[23]    Chirenda v Minister for Immigration and Border Protection [2015] AATA 64; Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498.
[24]    Park and Minister for Immigration and Citizenship [2010] AATA 886.
[25]    Park and Minister for Immigration and Citizenship [2010] AATA 886.
[26]    Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
While the Tribunal appreciates and commends the Applicant’s enthusiasm to join the ADF and the passionate way in which he sees Australia as his home and wants to contribute meaningfully to society, there is no evidence before the Tribunal that establishes that any hardships or disadvantages he may face in relation to future employment would be fundamentally caused due to his citizenship status rather than the competitive job market, current COVID-19 unemployment rate and his ability to afford to undertake further self-funded study.
Further, there is no evidence before the Tribunal that not being an Australian citizen will cause the Applicant significant hardship or disadvantage when considering that his personal needs are such that he is currently completing his final year of high school, is living with his parents and siblings and working part time. The evidence provided was that the Applicant would continue to look for employment and study options for when he finishes high school and that his family would continue to support him as best they can.
There is no evidence that the Applicant is currently or likely in the near future to experience financial hardship or be unable to gain employment. The evidence is that without Australian citizenship the Applicant is unlikely to be able to find employment of the kind that he is passionate about, his ability to enlist in the ADF is hindered if not impossible and the current employment market limits his future employment options and that without fee assistance tertiary study options are unlikely to be available to him. These matters while not trivial on any account all go to the Applicant’s personal wants, they are aspiration and generally do not constitute hardship.
In considering the best interest of the child considerations in relation to the Applicant the Tribunal notes that arguments in relation to the CROC principles that are relevant to citizenship decisions were not advanced by the Applicant. The Tribunal agrees with the contention of the Respondent that these principles do not apply in the current matter. If the Applicant is not granted Australian citizenship, as a permanent resident there is no indication that there are concerns in relation to family status or that he would be subjected to any form of violence, injury, abuse, neglect, maltreatment or exploitation.
The Tribunal considers that the Applicant does not meet the policy guidelines in relation to granting Australian citizenship to persons aged 16 and 17 and as such notes the discretion in section24(2) of the Citizenship Act would usually be exercised to refuse to approve an applicant from becoming an Australian citizen.
As set out above, it is settled legal principle that policy will be followed unless there are cogent reasons for it not to be followed. While the Tribunal accepts the disappointment and frustration that the Applicant will experience in not being able to enlist in the ADF upon leaving high school, he has not currently been guaranteed a position as he has not completed the application process, further there is nothing stopping him from applying to enlist at a future date should he continue to seek Australian citizenship.
The Tribunal has simply not had any evidence placed before it that would allow it to be satisfied that reasons exist for the policies not to be exercised. Despite the Tribunal’s initial reservations and empathy for the Applicant’s predicament it is bound to consider the policy requirements while looking at Applicant’s situation as a whole.
This Tribunal considers this to be a case where unbeknown to the Applicant he made his application for citizenship too early.
CONCLUSION
As set out above, the appropriateness of the policy to guide the decision maker in exercising the discretion under section 24(2) of the Citizenship Act is beyond question, and guided by the policy and taking all of the circumstances into account, the Tribunal finds that the usual policy of applications of children aged between 16 and 17 not being approved should apply in the Applicant’s case.
Accordingly, the decision under review is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

........[SGD].................................
Associate
Dated: 28 August 2020

Date of Hearing: 21 August 2020

Representative for the Applicant:

Solicitor for the Respondent:

Mr Johannes Kolesky

Ms Eleanor Cannon, Clayton Utz